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j ®CT 271397 

,;>on5^e-^ 


What is the Authority of the United 
States, or of the President, to 
use the Military Power of the 
Federal Government under the 
Constitution ? 

By Heber J. May. 





C"'" NOV 231897 


i 

/ A ' 

/' ' - 


y 




(Copyrighted, 1897, by Heber J. May.) 


McGill & Wallace, Printers, Washington, D. C. 








JK 


What is the Authority of the United 
States, or of the President, to 
use the Military Power of the 
Federal Government under the 
Constitution ? 


The question of the authority of the United States, 
or of the President, under the Constitution, to use 
the regular army or the militia in time of peace 
is of great importance and is destined to grow in 
this respect as surely as the General Government 
contends for the right to invoke this extraordinary 
power and exercise it in the manner it was exercised 
by Mr. Cleveland’s last administration. Freemen in 
the United States have always abhorred the use of 
military power, and have only sanctioned its use in 
cases of absolute necessity. It will be observed in the 
following pages that the discussions in the conven¬ 
tions related to the use of the militia for the pur- 




2 


poses provided for in the Constitution, and the ablest 
advocates for the use of the militia did not appre¬ 
hend that the “standing army” would be called out 
to “execute the laws.” Bven Mr. Madison, who was, 
in a sense, the champion in the Virginia Convention of 
the power to call forth the aid of the militia, argued 
that the adoption of the provision granting the power 
to the General Government would do away with the 
gieat mischief of a standing army. Ke also asserted 
that the Constitution does not say that a standing army 
shall be called out to execute the laws. 

The importance of the question has prompted me, 
therefore, to investigate it, and I now present the result 
of the investigation to the public in these pages. 

Reference is frequently made herein to a public an¬ 
nouncement of ex-Attorney General Harmon, upon the 
subject of discussion, simply because his statement af¬ 
fords an opportunity to discuss more fully some of 
the claims advanced in favor of the position of the 
General Government. I understand fully that the 
manifesto referred to was not, so far as known, in 
answer to a call from any branch of the Government 



3 

for an official opinion, but that it was promulgated more 
for political reasons and purposes than otherwise. It 
was, however, in effect, a quasi opinion rendered in 
behalf of the administration, of which the ex-Attorney 
General was a part. 

The ex-Attorney General of the United States of the 
last Cleveland administration, in his public communica¬ 
tion, declined to support the nominee and the Chicago 
platform, upon the ground that the National Democratic 
Convention, in its platform, protested against Federal 
interference by the use of the United States Army 
in the local affairs of the States, and also because the 
nominee of the convention for President had amplified 
that protest in his letter of acceptance. The then At¬ 
torney General suggested that the subject was one “ of 
great moment, to which general attention is now di¬ 
rected,” from which it maybe inferred, to some extent, 
at least, that the question was regarded by him as a new 
one. The history of the subject shows, however, that 
the question has always been considered of “ great mo¬ 
ment ” to American freemen. They realized its gravity 
and importance under the Articles of the Confederation, 


JK 



4 

in the Constitutional Convention, in the several State 
Conventions, and in the public discussions in the press 
for and against the ratification of the Constitution of 
the United States. This is, indeed, far more important 
to the American people than any other question, and it 
behooves the people of the Union to ponder well the 
language of the late Attorney General, the attitude and 
acts of the administration for which he spoke, as well 
as all the circumstances surrounding the troubles in 
which the military power of the United States has been 
invoked against the people, the chief outcome of which 
has usually been the killing of a few innocent persons, 
and the restoration of the sway of some powerful corpo¬ 
ration over the alleged rights and claims of the laboring 
men of the country ; for it is strangely strange, that the 
circumstances are always such that the military power 
will be used against the people, and, if the attempted 
interpretation of the unambiguous provisions of the 
Constitution is to prevail, the President of the United 
States may decide for himself just when he may order 
the army of the United States to march upon the people ; 
the very power, as will be shown further on, which the 


5 

framers of the Constitution restricted, by adding the 
condition that the United States should protect the 
States against domestic violence on application of the 
legislature, or of the Executive of the State when the 
legislature could not be convened. 

The late Attorney General boldly admits that the 
President, without the application of the legislature, or 
of the Executive of the State, and in some instances 
against his protest to the contrary, forcibly suppressed, 
with the United States army, “riotous disorders,” 
which had, it is alleged, stopped the carriage of the 
mails and interstate commerce, and were defying the 
civil officers of the United States. It will be observed 
that the most dangerous part of the claim is that the 
President may exercise such power “ upon his own 
judgment alone.” If he can do this, the second clause 
of section 4 of Article IV of the Constitution means 
nothing, inasmuch as there will scarcely be a case of 
domestic violence in which the President may not 
interfere with the army, without an application from 
the legislature or executive of the State, or from any 
source whatever. The contention practically elimi- 


6 


nates the clause from the Constitution and imposes 
upon its framers the imputation of having done a vain 
and foolish thing. But it was never intended to confer 
upon the President any such power, and I feel safe in 
stating that no President has ever acted upon any such 
construction of the Constitution, unless it was done in 
the instance referred to by the late Attorney General. 
In fact, there has not been recorded in the history of the 
Union a case in which the military forces of the 
United States have been used, upon the judgment of 
the President alone, to suppress “domestic violence,” 
until it was done by Mr. Cleveland’s last administra¬ 
tion. Whenever the army has been used, actual armed 
insurrection or rebellion existed, and the proclamation 
of the President recited the fact. The statute authoriz¬ 
ing the President to invoke the military power in cases 
of insurrection or rebellion was, and is in my judgment, 
founded on the clause in section 8 of Article I, which 
authorizes Congress to provide for calling forth the 
militia to execute the laws of the Union, suppress in¬ 
surrections, and repel invasions, and not on section 4 
of Article IV, which applies to invasions and domestic 


7 

violence, and not to insurrections. The Congress alone 
provides for dealing with insurrections. The Presi¬ 
dent is given exclusive power to deal with invasions, 
for excellent reasons. But the President has been 
given the authority to deal with “ domestic violence ” 
only when applied to for assistance by the legislature 
or executive of the State in which the violence exists. 
In the alleged “riotous disorders” at Chicago and 
elsewhere, the President attempted, no doubt, to follow 
in the footsteps of President Washington, who acted in 
a case of actual insurrection, in relying on a notifica¬ 
tion from a district judge and marshal to the effect that 
warrants could not be served by the civil authorities ; 
but there is now no statute requiring any such notifica¬ 
tion, or authorizing the President to act upon it. And 
the action of President Washington in Pennsylvania, in 
1793, can not be claimed as a precedent for such acts, 
for the reason that he proceeded to suppress an armed, 
organized insurrection against the revenue laws of the 
United States. It was a case of insurrection, not of 
domestic violence. Insurrection and rebellion may be, 
in their ordinary acceptation, interchangeable terms. 


8 


The former is a rebellion of citizens or subjects of a 
country against its government to prevent, by force of 
arms, the enforcement of its laws. The latter is the 
taking up of arms traitorously against the government 
by an organized uprising for the purpose of overthrow¬ 
ing or coercing the lawful ruler of the government by 
force. Domestic violence does not fall within either of 
these definitions. It is not directed against the govern¬ 
ment, and is not intended to overthrow it or its laws, 
but it is directed against other individuals or against 
corporations to redress supposed individual grievances, 
and for the purpose of obtaining alleged private rights. 
It is not an armed force or warfare, and its object has 
never been, so far, to overthrow or coerce governments."^ 
But let us go to the records to ascertain the history 
and meaning of section 4 of Article IV of the Constitu¬ 
tion. The several drafts or plans of a Federal Consti¬ 
tution presented to the Convention, according to Mr. 
Madison’s Minutes, contained provisions upon the sub¬ 
ject now under discussion. The section as adopted 
grew out of separate propositions and contains two dis¬ 
tinct clauses, although it is very evident that Mr. Ran- 


9 


dolph intended to cover the whole subject by his 
original resolution, which now forms the first clause of 
the Article. The resolution as presented to the Consti¬ 
tutional Convention, read as follows : 

“That a republican constitution and its existing 
laws ought to be guaranteed to each State by the 
United States.” 

After some discussion it was found that the resolution 
did not meet the approval of the Convention, chiefly 
because it was not considered advisable to guarantee the 
existing laws in some of the States. Mr. Wilson 
moved a substitute, which was adopted nem, con. It 
read as follows : 

‘ ‘ That a republican form of government shall be 
guaranteed to each State, and that each State shall be 
protected against foreign and domestic violence.” 

But the most important discussion upon the subject 
arose in the Constitutional Convention when it reached 
the proposed clause which read as follows : 

“ To subdue a rebellion in any State on the applica¬ 
tion of its legislature.” 


lO 


A motion was made by Mr. Pinckney and seconded 
by Mr. Morris, to strike out the words, “on the appli¬ 
cation of its legislature.” 

Mr. Martin and others opposed the motion because it 
gave the United States a dangerous and unnecessary 
power, and contended that the consent of a State 
ought to precede the introduction of any extraneous 
force whatever. 

Mr. Ellsworth argued that in many cases the General 
Government ought not to interfere unless called upon. 

Mr. Gerry was against letting loose the myrmidons 
of the United States on a State without its own con¬ 
sent. He thought the States would be the best judges 
in such cases. 

It appears from the Minutes that the clause was 
finally amended to read : “ To subdue a rebellion in 
any State, on the application of its legislature, or with¬ 
out it when the legislature can 7 iot 7 neet but the 
motion to adopt the amended clause was lost. 

When the Convention considered the report of the 
Committee of Detail, Article XVIII, which is now 
substantially section 4 of Article IV of the Constitu¬ 
tion, read as follows: 



II 


The United States shall guarantee to each State a 
republican form of government, and shall protect each 
State against foreign invasions, and, on the application 
of its legislature, against domestic violence.” 

The word ‘ ‘ foreign ’ ’ was stricken out of the Article 
as superfluous, being implied in the term “invasions.” 

Mr. Dickinson moved to strike out “ on the applica¬ 
tion of its legislature, against.” He and Mr. Dayton 
both thought it of essential importance to the tran¬ 
quillity of the United States that they should in all 
cases suppress domestic violence, but the motion was 
lost, three States voting for it and eight against it. 
On motion of Mr. Dickinson, the words “ or Execu¬ 
tive ” were added after ” application of its legislature.” 

Subsequently, the words, “ when the legislature can 
not be convened,” were inserted, and the section, after 
having undergone revision by the Committee on Style 
and Arrangement, was adopted as it now appears in the 
Constitution, to wit: 

“The United States shall guarantee to every^ State 
in this Union a republican form of government, and 
shall protect each of them against invasion, and on 
application of the legislature or of the executive (when 


tlie legislature can not be convened), against domestic 
violence.” 

The section quoted above is taken from the Revised 
Statutes of the United States, and by comparing it 
with the original of Mr. Madison it will be found that 
alterations have been made in the punctuation, and in 
one instance in the phraseology. 

The power of the Executive under the first clause of 
section 4 of Article IV, which applies to invasion, can 
not be doubted, and does not fall within this discussion. 
The people’s interests are comprehended in the second 
clause, the original scope of which was to grant power 
to the United States to suppress rebellion in any State 
upon application of its legislature, but, as finally 
adopted, guarantees to the States protection against 
domestic violence, on application of the legislature or 
of the executive. 

In the draft of the Constitution, according to Elliott’s 
Debates, reported by a committee of five, the following 
paragraphs in relation to the powers of the legislature 
of the United States appear in Article VII, section i : 




“ 1st. To subdue a rebellion in any State on tbe 
application of its legislature.’’ 

“ 2d. To call forth the aid of the militia, in order to 
execute the laws of the Union, enforce treaties, sup¬ 
press insurrections, and repel invasions.” 

These paragraphs are taken from Mr. Pinckney’s 
draft of a Federal Government. 

On August 23, 1787, the first part of the i8th clause 
of the ist section of the ist Article was amended by 
an affirmative vote to read as follows: “ To provide for 
calling forth the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions.” 
And this paragraph is retained in section 8 of the 
revised draft of the Constitution, reported September 
12, 1787, by the Committee of Revision. 

This is an opportune time to make reference to the 
views annunciated by statesmen in the State Conventions 
that met to adopt or reject the Constitution. The ref¬ 
erences are to Elliott’s Debates. 

No extended argument took place in the debate in 
the Convention of the Commonwealth of Massachusetts 
on the adoption of the Federal Constitution upon the 


14 

paragraphs now under consideration. Slight reference 
was made to the fact that the United States guaranteed 
to each State a republican form of government, but the 
question was not discussed at any length. 

No especial mention is made of these paragraphs in 
the debates in the Conventions on the adoption of the 
Federal Constitution of the States of Connecticut and 
New Hampshire. 

In the debates in the State of New York on the adop¬ 
tion of the Federal Constitution, the paragraphs are 
referred to several times. Mr. Smith said, among other 
things concerning classes of society, by way of quota¬ 
tion from the Marquis Beccaria, as follows: “In every 
human society there is an essay continually tending to 
confer on one part the height of power and happiness, 
and to reduce the other to the extreme of weakness and 
misery. The intent of good laws is to oppose this effort, 
and to diffuse their influence universally and equally.’’ 
Mr. Treadwell referred to the paragraph which guar¬ 
anteed to the several States a republican form of gov¬ 
ernment, and opposed its adoption upon the ground 
that it swallowed up the whole power of sovereignty of 



15 

the State government as well as the liberties of the 
people. 

In the debates in the Convention of the State of 
Pennsylvania on the adoption of the Federal Constitu¬ 
tion, Mr. Wilson argued in favor of the power of the 
United States to raise and keep up an army in time of 
peace, and referred to the then existing commotions in 
the State of Massachusetts. He also argued in favor 
of the clause authorizing Congress to make laws for the 
calling out of the militia to execute the laws of the 
Union, suppress insurrections, and repel invasions. 

The question was ably and interestingly debated in 
the Virginia Convention. Patrick Henry said : “Did 
you ever read of any revolution in a nation, brought 
about by the punishment of those in power, inflicted by 
those who have no power at all ? You read of a riot 
act in a country which is called one of the freest in the 
world, where a few neighbors can not assemble without 
the risk of being shot by a hired soldiery, the engines 
of despotism. We may see such an act in America.” 

Mr. Madison said, in reply : “ But the honorable 
member sees great danger in the provision concerning 


i6 

the militia. This I conceive to be an additional secure 
ity to our liberty, without diminishing the power of the 
States in any considerable degree. It appears to me so 
highly expedient that I should imagine that it would 
have found advocates even in the warmest friends of 
the present system. The authority of training the 
militia, and appointing the officers, is reserved to the 
States. Congress ought to have the power to establish 
a uniform discipline throughout the States, and to pro¬ 
vide for the execution of the laws, suppress insurrec¬ 
tions, and repel invasions: these are the only cases 
wherein they can interfere with the militia ; and the 
obvious necessity of their having power over them 
must convince any reflecting mind.” 

Mr. Clay wished to be informed why the Congress 
were to have power to provide for calling forth the 
militia, to put the laws of the Union into execution. 

Mr. Madison supposed the reasons of this power to 
be so obvious that they would occur to most gentle¬ 
men. If resistance should be made to the execution of 
the laws, he said, it ought to be overcome. This could 
be done only in two ways—either by regular forces or 




by the people. By one or the other it miist unques¬ 
tionably be done. If insurrections should arise, or in¬ 
vasions should take place, the people ought unquestion¬ 
ably to be employed, to suppress and repel them, rather 
than a standing army. The best way to do these things 
was to put the militia on a good and sure footing, and 
enable the government to make use of their services 
when necessary. 

Mr. George Mason. “ Mr. Chairman, unless there 
be some restrictions on the power of calling forth the 
militia to execute the laws of the Union, suppress in¬ 
surrections, and repel invasions, we may very easily see 
that it will produce dreadful oppressions. It is ex¬ 
tremely unsafe, without some alterations. It would be 
to use the militia to a very bad purpose, if any disturb¬ 
ance happened in New Hampshire, to call them from 
Georgia. This would harass the people so much that 
they would agree to abolish the use of the militia, and 
establish a standing army. I conceive the General Gov¬ 
ernment ought to have power over the militia, but it 
ought to have some bounds. No man has a greater 
regard for the military gentlemen than I have. I ad- 


i8 

mire their intrepidity, perseverance, and valor. But 
when once a standing army is established in any 
country the people lose their liberty. When, against 
a regular disciplined army, yeomanry are the only 
defence — yeomanry, unskillful and unarmed — what 
chance is there for preserving freedom ? ’ ’ 

Mr. Madison. “Mr. Chairman, I most cordially 
agree with the honorable member last up, that a stand¬ 
ing army is one of the greatest mischiefs that can pos¬ 
sibly happen. It is a great recommendation for this 
system, that it provides against this evil more than 
any other system known to us, and, particularly, more 
than the old system of confederation. The most effect¬ 
ual way to guard against a standing army is to render 
it unnecessary. The most effectual way to render it 
unnecessary is to give the General Government full 
power to call forth the militia, and exert the whole 
natural strength of the Union, when necessary. * * * 
And can anything be more demonstrably obvious than 
that laws ought to be enforced if resisted, and insur¬ 
rections quelled, and foreign invasions repelled ? But, 
it is asked, ‘ Why has not the Constitution declared 


^9 

that the civil power shall be employed to execute the 
laws ? ’ Has it said that the civil power shall not be 
employed ? The civil officer is to execute the laws on 
all occasions, and, if he be resisted, this auxiliary 
power is given to Congress of calling forth the militia 
to execute them, when it shall be found absolutely 
necessary. 

‘‘ From his (Patrick Henry’s) argument on this oc¬ 
casion, and his eulogium on the executive magistrate 
of Britain, it might be inferred that the executive mag¬ 
istrate here was to have the power of calling forth the 
militia. What is the idea of those gentlemen who 
heard his argument on this occasion ? Is it not that 
the President is to have this power—that President 
who, he tells ns, is not to have those high feelings and 
that fine sensibility which the British monarch pos¬ 
sesses? No, sir. The President is not to have this 
power. God forbid we should ever see a public man 
in this country who should have this powder ! Congress 
only are to have the power of calling forth the militia.” 
(Nicholas.) 

Mr. Clay was not, however, convinced that the civil 


20 


power would be employed. If it was meant that the 
militia would not be called out to execute the laws in 
all cases, why were they not satisfied with the words, 

‘‘ repel invasions, suppress insurrections.” He thought 
the word insurrections included every opposition to 
the laws ; and if so, it would be sufficient to call them 
forth to suppress insurrections, without mentioning 
that they were to execute the laws of the Union. He 
added that, although the militia officers were appointed 
by the State governments, yet, as they were sworn to 
obey the superior power of Congress, no check or 
security would result from their nomination of them. 

Mr. Madison. “ Mr. Chairman, I can not think that 
the explanation of the gentleman last up is founded in 
reason. It does not say that the militia shall be called 
out in all cases, but in certain cases. There are cases 
in which the execution of the laws may require the 
operation of militia which can not be said to be an in¬ 
vasion or insurrection. There may be a resistance to 
the laws which can not be termed an insurrection.” 

Mr. Clay wished to know the instances where an 
opposition to the laws did not come within the idea of 
an insurrection. 




21 


Mr. Madison replied that a riot did not come within 
the legal definition of an insurrection. There might 
be riots, to oppose the execution of the laws, which the 
civil power might not be sufficient to quell. This was 
one case, and there might probably be other cases. He 
referred to the candor of the committee, whether the 
militia could ever be used to destroy themselves. 

With respect to calling the militia to enforce every 
execution indiscriminately, it is unprecedented. Have 
we ever seen it done in any free country ? Was it ever 
so in the mother country ? It never was so in any well- 
regulated country. It is a government of force, and 
the genius of despotism expressly. It is not proved 
that this power is necessary ; and if it be unnecessary, 
shall we give it up? (Henry.) 

Was there ever a constitution in which, if authority 
was vested, it must not have been executed by force, if 
resisted ? Was it not in the contemplation of this State, 
when contemptuous proceedings were expected, to re¬ 
cur to something of this kind ? How is it possible to 
have a more proper resource than this ? That the laws 
of every country ought to be executed, can not be 
denied. Can any government be established, that will 


22 


answer any purpose whatever, unless force be provided 
for executing its laws ? The Constitution does not say 
that a standing army shall be called out to execute the 
laws. Is not this a more proper way ? The militia 
ought to be called forth to suppress smugglers. Will 
this be denied ? (Madison.) 

For Continental purposes Congress may call forth the 
militia—as to suppress insurrections and repel inva¬ 
sions. But the power given to the States by the people 
is not taken away ; for the Constitution does not say 
so. (John Marshall.) 

The State governments are to govern the militia 
when not called forth for general national purposes; 
and Congress is to govern such part only as may be in 
the actual service of the Union. Nothing can be more 
certain and positive than this. It expressly empowers 
Congress to govern them when in the service of the 
United States. It is, then, clear that the States govern 
them when they are not. With respect to suppressing 
insurrections, I say that those clauses which were men¬ 
tioned by the honorable gentleman are compatible with 
a concurrence of the power. By the first. Congress is 


23 

to call them forth to suppress insurrections, and repel 
invasions of foreign powers. A concurrence in the 
former case is necessary, because a whole State may be 
in insurrection against the Union. What has passed 
may perhaps justify this apprehension. (Madison.) 

The fourth section of the fourth article contains 
nothing to warrant the supposition that the States can 
not call them forth to suppress domestic insurrections. 
All the restraint here contained is, that Congress may, 
at their pleasure, on application of the State legislature, 
or (in vacation) of the executive, protect each State 
against domestic violence. This is a restraint on the 
General Government not to interpose. The State is in 
full possession of the power of using its own militia to 
protect itself against domestic violence ; and the power 
in the General Government can not be exercised, or 
interposed, without the application of the State itself. 
This appears to me to be the obvious and fair construc¬ 
tion. (Pendleton.) 

Pending the ratification of the Constitution by the 
States the subject of conferring power on the United 
States to execute the laws by military force was dis- 


24 

cussed, and the contention was made against such 
power that no provision was made in the proposed Con¬ 
stitution for calling out the posse cornitatus to assist the 
magistrates in the discharge of their duty, and* that the 
military force was intended thereby to be their only 
auxiliary. Mr. Hamilton treated these objections to 
the Constitution as absurd, upon the ground that the 
aid of the \)osse cojnitatus was fully authorized by the 
Constitution. And it may be remarked that the stat¬ 
utes of the United States, in force at the time of the 
occurrence of the disorders referred to by the late Attor¬ 
ney General, authorized the persons appointed by Com¬ 
missioners of the Circuit Courts of the United States to 
serve warrants and other process, to summon and call 
to their aid, in the first instance, the bystanders, or posse 
comitatus. (Rev. Stats., sec. 1984.) The marshal of the 
United States, and his general and special deputies, are 
authorized and empowered to summon and call to their 
aid, in the discharge of their duties, the bystanders or 
posse comitatus of the judicial district. (Rev. Stats., 
sec. 2024.) And the posse comitatm is allowed to the 
marshal in executing process in the Indian country. 



25 


(Rev. Stats., sec. 2153.) By the act of June 18, 1878 
(20 Stats., 145), making appropriations for the support 
of the army, it is provided, that from and after the pass¬ 
age of the act it shall not be lawful to employ any 
part of the army of the United States, as a posse comi- 
tatus or otherwise, for the purpose of executing the 
laws, except in cases and under circumstances expressly 
authorized by the Constitution or by act of Congress. 

On all former like occasions in the history of the 
Union the posse comitatus^ aided by the State militia, 
has been ample to suppress “domestic violence,” as 
distinguished from insurrection and rebellion, and no 
doubt if this power had been properly used at Chicago 
it would have been sufficient to arrest the offenders and 
quell the disturbance. But when a civil officer feels 
that the military will come to his aid in case of emer¬ 
gency, he naturally becomes lax in the discharge of 
his duty. 

The legislators in the second and third Congresses 
evidently understood what the Constitution meant, and, 
excepting in one particular, hereafter noted, substan¬ 
tially followed its language in enacting statutes pur- 


26 


suant thereto for calling out the militia to suppress 
insurrection in a State. And in providing for the use 
of the militia whenever the laws of the United States 
were opposed, or their execution obstructed, in a State, 
by combinations too powerful to be suppressed by the 
ordinary course of judicial proceedings, or by the 
power vested in the marshals by law, the President 
might, upon notice to that effect, from an associate jus¬ 
tice or the district judge, call out the militia to sup¬ 
press the combination and enforce the laws, (i Stats., 
424, ch. 36, 1795 ; also p. 246, ch. 28.) The power 
to employ the land and naval forces of the United 
States in cases of insurrection was authorized by the 
act of March 3, 1807 (2 Stats., 443, ch. 39), the Presi¬ 
dent “ having first observed all the prerequisites of the 
law in that respect.” Section 5297 of the Revised 
Statutes is based upon those acts of Congress, and 
reads as follows : 

“ In case of an insurrection in any State against the 
government thereof, it shall be lawful for the President, 
on application of the legislature of such State, or of 
the executive, when the legislature can not be con- 


27 


vened, to call forth such number of the militia of any 
other State or States, which may be applied for, as he 
deems sufficient to suppress such insurrection ; or, on 
like application, to employ, for the same purposes, such 
part of the land or naval forces of the United States as 
he deems necessary.” 

And notwithstanding some of the provisions of the 
earlier statutes which guarded the people’s interests da 
not appear in the present statute, yet such provisions 
may be referred to for the purpose of ascertaining the 
legal history of the power of the authorization to use 
the military force, and the extent of that power, as 
well as for the proper interpretation of the existing 
section of the statute which is derived therefrom. 

In view of the expressions of the earliest acts of 
Congress, it is safe to arrive at the conclusion that it 
was never intended that the militia, or land and naval 
forces, should be used by the President in any event 
until the civil courts of the United States, and the 
marshal, with his posse cofnitatus^ had exhausted their 
power and failed to suppress the unlawful and powerful 
combination or insurrection ; and when the crisis was 


28 


reached the President’s power to act depended upon a 
notification from an associate justice or district judge ; 
in no instance was he authorized to act on his own 
judgment. 

It was in the act for the suppression of the rebellion 
that the alleged power to act on his own judgment was 
first conferred' on the President. The act is very 
peculiar from the fact that it makes the President the 
judge as to when it shall become impracticable for a 
co-ordinate branch of the Government, by the ordinary 
course of judicial proceedings, to enforce the laws of 
the United States within any State or Territory of the 
United States. (12 Stats., 281, sec. i, ch. 25.) This is 
now section 5298 of the Revised Statutes, which reads 
as follows : 

‘ ‘ Whenever, by reason of unlawful obstructions, 
combinations, or assemblages of persons, or rebellion 
against the authority of the Government of the United 
States, it shall become impracticable in the judgment 
■of the President to enforce, by the ordinary course of 
judicial proceedings, the laws of the United States 
within any State or Territory, it shall be lawful for the 


29 


President to call forth the militia of any or all the 
States, and to employ such parts of the land and naval 
forces of the United States as he may deem necessary to 
enforce the faithful execution of the laws of the United 
States, or to suppress such rebellion, in whatever State 
or Territory thereof the laws of the United States may 
be forcibly opposed, or the execution thereof forcibly 
obstructed.” 

The law, in effect, authorizes the President to put his 
own judgment above that of the judiciary, and deter¬ 
mine whether or not it is practicable or impracticable 
for that branch of the Government to proceed “ by the 
ordinary course of judicial proceedings.” There may 
have been times during the rebellion when a President 
could have exercised his judgment in this respect with¬ 
out hesitation, or probably without being subject to 
criticism, but no doubt his judgment and the statute 
were both applied to sections of the United States in 
which, at the time, there was, strictly speaking, no 
“ordinary course of judicial proceedings” in the courts 
of the United States. This may have happened during 
the war of the rebellion, but no one has heard of a 


30 

President exercising his judgment in this respect against 
the courts of the United States in time of actual peace. 

. ^If, therefore, the President used the military force in 
suppressing the “ riotous disorders ” referred to, because, 
in his judgment, it was impracticable for the courts of 
the United States to enforce the laws by the ordinary 
course of judicial proceedings in time of peace, the 
time has come for American citizens to make confes- 
, sion of the failure of civil government.'^ 

There is not, to my knowledge, a single instance, 
from the ratification of the Constitution, and the laws 
passed pursuant thereto, to the actual war of the re¬ 
bellion, in which an Executive of the United States 
used the military force to suppress insurrection or 
domestic violence, except upon application of the proper 
State or other authority. His sole judgment in such 
cases was exercised after such applications were made, 
and not before; and in one of the most noted cases in 
the history of the Union, which occurred in Rhode 
Island, he did not call out the militia, although he had 
exercised his judgment and determined to do so upon 
the application of the governor of the State who had 


31 

been recognized by him in the controversy between 
contending claimant’s to the governor’s office. 

The history of the legislation upon the subject clearly 
shows that it was never intended to give the President 
authority to use the military power of the United States 
upon his sole judgment, except in cases of invasion, or 
of imminent danger of invasion. In order to give him 
such authority, the courts, which are the foundation 
and source of civil government, must be abolished by 
insurrection, or so overthrown that they are unable to 
proceed with ordinary judicial proceedings. 

Notwithstanding the omissions from section 5298 ot 
the Revised Statutes of the provisions of the original 
enactments of Congress, which carefully guarded the 
rights of the States and the people against the encroach¬ 
ment of the military power of the United States upon 
the civil authorities, there is enough left in the statute 
to indicate that it was not the intention to confer abso¬ 
lute authority upon the President in that respect. The 
courts must be stopped in their ordinary proceedings 
before he can act—that is, he must so adjudge. If sec¬ 
tion 5298 is constitutional, the President is at the same 


32 

time the Executive, the commander-in-chief of the 
army and navy, and the general supervisor over the 
courts of the Union, both in war and in peace. What 
a portentous claim for executive power in a republican 
government having only limited delegated powers and 
distinct co^-ordinate branches ! No wonder the consti¬ 
tutionality of this part of section 5298 is questioned. 
The only vestige of the guarded provisions of the for¬ 
mer statutes in favor of civil government that remains, 
is that which refers to the courts, and that, if the sec¬ 
tion is constitutional, gives the President the right to 
wipe them out if he so adjudges. 

It will be observed that section 5298, or its antece¬ 
dent, became a law on July 29, 1861, and had for its 
immediate purpose the suppression of a rebellion 
already in existence. The bombardment of Fort 
Sumter had taken place and the President had fixed 
the 19th of April, 1861, as the beginning of the war of 
the rebellion by a proclamation. Ordinances of seces¬ 
sion were adopted by the seceding States, and State 
governments were set up against the authority of the 
United States, and an army organized and put in the 


33 

field to sustain them. An application from the legis¬ 
lature or executive of either of the seceding States 
was impossible, from the fact that the legislatures and 
executives had gone with the seceding States and con¬ 
tinued the same State governments, and made them 
antagonistic to the Union. The rebellion was of such 
magnitude that, by judicial determination, it did not 
end until 20th August, 1866. Actual hostilities existed 
until General Uee surrendered. The ex-Attorney Gen¬ 
eral refers to the rebellion as a precedent for the Presi¬ 
dent to use the military force without restraint or 
limitation, to suppress “ riotous disorders,” which did 
not contain a single element of rebellion towards the 
United States or their laws. Could a more absurd 
attempt at either a direct or implied precedent be 
imagined ? 

The Supreme Court, in its opinion in the Milligan 
case (4 Wall., 2), wherein the provisions of the act of 
March 3, 1863 (12 Stats., 755), relating to habeas corpusy, 
and regulating judicial proceedings in certain cases, 
were drawn in question, has announced in unmistakable 
terms, by its opinion delivered by Justice David Davis 
of Illinois, when and where martial law may be 



34 

declared, and when the use of the military power may 
be invoked, in time of war and in time of peace. And 
the court, in considering the questions involved in the 
case, says : 

“ The importance of the main question presented by 
this record can not be overstated; for it involves the 
very framework of the Government and the funda¬ 
mental principles of American liberty. 

“ During the late wicked rebellion the temper of the 
times did not allow that calmness in deliberation and 
discussion so necessary to a correct conclusion of a 
purely judicial question. considerations of safety 

were mingled with the exercise of power ; and feelings 
and interests prevailed which are happily terminated. 
Now the public safety is assured, this question, as 
well as all others, can be discussed and decided without 
passion or the admixture of any element not required 
to form a legal judgment. We approach the investiga- ^ 
tion of this case fully sensible of the magnitude of the 
inquiry and the necessity of full and conscious delib¬ 
eration.” 

******** 

“ In interpreting a law the motives which must have 
operated with the legislature in passing it are proper to 


35 


be considered. This law was passed in a time of great 
national peril, when our heritage of free government 
was in danger. An armed rebellion against the national 
authority, of greater proportions than history affords 
an example of, was raging ; and the public safety re¬ 
quired that the privilege of the writ of habeas corpus 
should be suspended.” 

******* 

“No graver question was ever considered by this 
court, nor one which more nearly concerns the rights 
of the whole people ; for it is the birthright of every 
American citizen when charged with crime to be tried 
and punished according to law. The power of punish¬ 
ment is alone through the means which the laws have 
provided for that purpose, and if they are ineffectual, 
there is an immunity from punishment, no matter how 
great an offender the individual may be, or how much 
his crimes may have shocked the sense of justice of the 
country or endangered its safety. By the protection 
of the law human rights are secured ; withdraw that 
protection and they are at the mercy of wicked rulers 
or the clamor of an excited people.” 

The claim for unrestrained power of the military 
commander, even in time of war, to suspend all civil 


36 

rights and their remedies, according to his own judg¬ 
ment, and subject all citizens as well as soldiers to the 
rule of his will, is characterized by the Supreme Court 
in the vSame opinion, as follows: 

If this position is sound to the extent claimed, then 
when war exists, foreign or domestic, and the country 
is subdivided iuj:o military departments for mere con¬ 
venience, the commander of one of them can, if he 
chooses, within his limits, on the plea of necessity, with 
the approval of the Executive, substitute military force 
for and to the exclusion of the laws, and punish all 
persons as he thinks right and proper, without fixed or 
certain rules. 

“ The statement of this proposition shows its impor¬ 
tance ; for, if true, republican government is a failure, 
and there is an end of liberty regulated by law. Mar¬ 
tial law, established on such a basis, destroys every 
guarantee of the Constitution, and effectually renders 
the ‘ military independent of and superior to the civil 
power ’—the attempt to do which by the King of Great 
Britain was deemed by our fathers such an offence that 
they assigned it to the world as one of the causes which 
impelled them to declare their independence. Civil 



liberty and this kind of martial law can not endure 
together ; the antagonism is irreconcilable, and, in the 
conflict, one or the other must perish.”^ 

******* 

“ It follows, from what has been said on this subject, 
that there are occasions when martial rule can be prop¬ 
erly applied. If, in foreign invasion or civil war, the 
courts are actually closed, and it is impossible to ad¬ 
minister criminal justice according to the law, then, on 
the theatre of active military operations, where war 
really prevails, there is a necessity to furnish a substi¬ 
tute for the civil authority thus overthrown, to preserve 
the safety of the army and society ; and as no power is 
left but the military, it is allowed to govern by martial 
rule until the laws can have their free course. As 
necessity creates the rule, so it limits its duration ; for 
if this government is continued after the courts are re¬ 
instated, it is a gross usurpation of power.” 

The interpretation of the provisions of the act of 
Congress relating to habeas corpus may be applied with 
equal force to the interpretation of the act of July 29, 
1861 (now section 5298 of the Revised Statutes), for 
they were both enacted for the same purpose—the 
suppression of the rebellion. 


38 


As previously stated, there can be no controversy 
about the power of the President, under the first clause 
of section 4 of Article IV of the Constitution, and 
under section 5297 of the Revised Statutes, to use the 
army according to his own judgment in cases of in¬ 
vasion, or contemplated invasion. That section of the 
statute, both in its original and present form, contains 
two separate and distinct clauses, and conforms to the 
constitutional provisions in that respect. These clauses 
have been passed upon by the Supreme Court. Mr. 
Justice Story has held that the power conferred on the 
President by the Constitution and enactments of Con¬ 
gress, under the first clause, makes him the exclusive 
and final judge whether the exigency has arisen for the 
use of the army in cases of invasion. But he also says : 
“ The power confided by Congress to the President is, 
doubtless, of a very high and delicate nature. A free 
people are naturally jealous of the exercise of military 
power; and the power to call the militia into actual 
service is certainly felt to be one of no ordinary mag¬ 
nitude.” * * * “It is, in its terms, a limited 

power, confined to cases of actual invasion, or of immi¬ 
nent danger of invasion.” 


39 

It is important to observe how carefully and cau¬ 
tiously a great jurist, in announcing the opinion of 
the Supreme Court in 1827, referred to the exercise 
of the President’s power, even in cases of invasion. 

The second clause of the same section and Article of 
the Constitution, and the legislation upon the subject, 
were considered by the Supreme Court at its December 
term, 1848, in Luther v. Borden (7 Howard, i, 44, 45). 
Mr. Chief Justice Taney delivered the opinion in the 
case, and says: 

A question very similar to this arose in the case of 
Martin v. Mott (12 Wheat., 29-31). The first clause of 
the first section of the act of F'ebruary 28, 1795” (now 
part of section 5297, Revised Statutes), “of which we 
have been speaking, authorizes the President to call out 
the militia to repel invasion. It is the second clause in 
the same section which authorizes the call to suppress 
an insurrection against a State government. The power 
given to the President in each case is the same, with the 
difference only, that it can not be exercised by him in 
the latter case, except upon the application of the legis¬ 
lature or executive of the State.” 

Nothing can be more refreshing or wholesome in this 
connection than a perusal of the dissenting opinion of 


40 


Mr. Justice Woodbury (Luther v. Borden, ih.^ 48), in 
which he reviewed the English and American law upon 
the subject of martial law and the use of the army in 
aid of the civil authorities, including the constitutional 
provisions and the original statutes herein mentioned. 
A few excerpts from his dissenting opinion will not be 
out of place here. 

“Under our present Constitution, the first, if not 
nearest, precedent in history, as to the course proper to 
be followed in any State insurrection, is Shays’ rebellion 
in Massachusetts. Having occurred in 1787, before the 
formation of the Federal Constitution, and having been 
suppressed by the State alone, under its own independ¬ 
ent authority, * * * untrammelled by any 

of the provisions now existing about war and insurrec¬ 
tion in that Constitution. But the course on that occa¬ 
sion is full of instruction and proof as to what was deemed 
the legal use of the militia by the State, when thus 
called out, under the old Confederation, and the rights 
of force incident to a State on a rebellion within its 
limits. We have before shown that the provisions in 
the old Confederation as to war were much the same in 
substance as in the present Constitution. Now, in 




41 


Shays’ rebellion, the resort was not first had at all to 
the military, but to the civil power, till the courts 
themselves were obstructed and put in jeopardy.” 

* * * “The writ of habeas corpus was merely 

suspended for a limited time, and the military ordered 
to aid in making arrests under warrants, and not by 
military orders. They were directed to protect civil 
officers in executing their duties, and nothing more, 
unless against persons when actually in the field ob¬ 
structing them.” 

And in another part of the opinion, the eminent 
justice, after having reviewed section 4, Article IV of 
the Constitution, arid the acts of Congress, said: 

“ Under these views and restrictions, the States have 
succeeded well, thus far—over half a century—in sup¬ 
pressing domestic violence in other ways than by mar¬ 
tial law. The State courts, with the aid of the militia, 
as in Shays’ rebellion and the Western Insurrection, 
could, for aught which appears, by help of the posse 
comitahis^ or at least by that militia, have in this case 
dispersed all opposition. They did this in both of those 
instances, so much more formidable in numbers, and 
made no resort to martial law. (Minot’s History, 163, 


42 


178.) In one of them, not even the writ of habeas 
corpus was suspended by the State, and never by the 
United States, though empowered to do that in danger¬ 
ous emergencies. (2 Kent’s Com., 24; 2 Story’s Com. 
on Const., sec. 1335.) But if civil process, aided by the 
militia, should fail to quell an insurrection against 
State laws, which has never yet happened in our his¬ 
tory, then appeal lies, and is appropriate, to the General 
Government for additional force before a resort can be 
had to supposed belligerent rights, much less to any 
exploded and unconstitutional extremes of martial law.”* 


In the insurrection in Pennsylvania against the laws 
of the United States, in 1793, where rebellion, violent 
resistance, and even treason were committed, martial 
law was not declared, nor was the writ of habeas corptis 
suspended, but the militia was called out on the appli¬ 
cation of the district judge and the marshal, in accord¬ 
ance with the statute then in force, to co-operate with 
the civil authorities, who had proved insufficient to 
execute the warrants issued, without military, aid. The 
Secretary of War issued an order stating that the object 
for which the troops were sent was to assist the mar- 


43 

shal in arresting offenders under criminal process. And 
the President constantly enjoined a subordination of the 
military to the civil power, and accompanied the militia 
in person to see that the laws were respected ; and gave 
assurance, says the historian, ^‘that the army should 
not consider themselves as judges or executioners of the 
laws, but as employed to support the proper authorities 
in the execution of them.” But George Washington 
happened to be President at that time. Probably he 
did not know when or how to use the military force 
under the Constitution and laws. A similar course 
was pursued in arresting offenders in the Burr con¬ 
spiracy. One or two arrests were made by the military 
without oath and warrant, but the persons were imme¬ 
diately released on habeas corpus. 

The “riotous disorders,” except Shays’ rebellion, 
took place, excepting as herein noted, under the same 
statutes that are in force to-day ; for the first section of 
the act of May 2, 1792, is identically the same as the 
first section of the act of February 28, 1795, which 
repeals the former act entirely, and which, with the act 
of March 3, 1807, forms the basis of section 5297 of the 


44 

Revised Statutes. And the provisions of the second 
section of the act of 1792 are superseded by the same 
section in the act of 1795, which dispenses with the 
notice to the President by the associate justice or dis¬ 
trict judge ; and in c;^rrying this section into the act of 
July 29, 1861, its phraseology is materially changed, 
and the provision relating to marshals is omitted. 
This is now section 5298 of the Revised Statutes. 

It is important to ascertain the intention of the 
framers of the Constitution, and their real acts, in lim¬ 
iting the power delegated to the President or to the 
United States to use the militia. There is no doubt 
there were members of the Convention who desired to 
give the President absolute authority to use the army 
in all cases, regardless of the rights of the States. 
Some of these persons were evidently sent to Congress 
and proceeded to do there what the Constitutional Con¬ 
vention had refused to do ; for in all of the acts of Con¬ 
gress may be found the following words : ‘ ‘ against the 
government thereof,” referring to the State govern¬ 
ments. If the act of the Constitutional Convention, in 
rejecting this very language, is of any value, then there 


45 

may be a question as to whether there is any warrant 
for placing it in the acts of Congress. In the considera¬ 
tion of the original resolution, “ to subdue a rebellion 
in any State,” etc., Mr. Madison and Mr. Dickinson 
moved to insert, after State, “ against the government 
thereof,” which was agreed to 7 iem. con,^ but upon the 
final discussion and vote, the clause as amended was 
rejected, and the words never appeared in the discus¬ 
sions afterwards ; and the closeness of the vote, which, 
according to Mr. Madison, was a tie, is an assurance 
that the question was fully discussed and duly con¬ 
sidered by the Convention. And the provision was 
adopted in its present general terms, without making 
any distinction whatever as to whether the domestic 
violence should exist against the State or the Nation. 
A case of domestic violence can scarcely be mentioned, 
or imagined, which does not affect both governments ; 
but it is primarily against the State government, whose 
duty it is to suppress it, and w^hen, in its judgment, it 
is powerless to do so, the assistance of the President 
may be asked to aid the civil authorities in suppressing 
the violence. The framers of the Constitution under- 


46 


stood this thoroughly, and said that no extraneous force 
whatever should be permitted to go into a State with- • 
out its consent for any purpose whatever, and limited 
the power of the President to act upon the application 
of the legislature or executive of the State accordingly. 
Congress has been given ample power, under section 8 
of Article I, to suppress insurrections, repel invasions, 
and execute the laws of the Union. By the first clause 
of section 4, Article IV, the United States has been 
given ample authority to protect the States against 
invasion from Indian tribes or foreign nations. By the 
second clause of section 4, Article IV, power has been 
given to the United States to protect the States against 
domestic violence, upon the application of the legisla¬ 
ture or executive, but not otherwise; and the applica¬ 
tion of the legislature or executive of the State for 
Federal assistance is not confined to domestic violence 
against the State alone, but to domestic violence gener¬ 
ally, according to the action of the Constitutional Con¬ 
vention. 

The Government of the United States is not author¬ 
ized to use the army except in such cases as are men- 



47 

tioned in the Constitution. It has no implied power in 
the premises, but only such power as has been actually 
delegated to it by the States It is a question whether 
the power has been granted, not of its lack of prohibi¬ 
tion. 

There is no doubt of the sovereignty of the United 
States throughout the Union, but it is, in the first 
instance, at least, a civil sovereignty as contradistin¬ 
guished from a military sovereignty. The claim that 
the President can send the army into the States for the 
suppression of domestic violence, whether against the 
laws of the United States or the State, or both, except¬ 
ing upon an application of some one authorized to 
make it, has never been conceded, and will not now be 
accepted by the people, sub silentio. And when the 
army is properly brought into service its duty is to 
assist the civil authorities to arrest offenders and vio¬ 
lators of the laws upon process issued from the civil 
courts, and not to make arrests by virtue of military 
power or orders, or to shoot people indiscriminately. 
It will not do to argue that, because our system of 
government is dual, the United States may invade the 


48 


States with an army regardless of their sovereign rights, 
whenever, in the judgment of the President, he decides 
to do so, to enforce the laws of the United States, or to 
disperse assemblages, which, according to his judgment, 
are obstructing such laws, unless such assemblages con¬ 
sist of armed insurrectionists against the laws of the 
United States. If this can be done, in the mode con¬ 
tended for, then the provision in the Constitution 
which guarantees to every State in the Union a repub¬ 
lican form of government and protection from invasion 
has become, or may become, a nullity by the acts of the 
Federal Government itself, which may by its own acts 
break down and destroy such guarantee by military 
force. 

But grant that the United States, or the President, 
has the power, coextensive with the Union, to employ 
military force against unlawful combinations or assem¬ 
blages of persons for violating or obstructing the laws 
of the United States, does it follow, or has it ever here¬ 
tofore been claimed, that the President was unrestricted 
in the exercise of that power, and that his will was 
absolute, in using such force even in cases of insurrec- 




49 

tion. All the precedents are antagonistic to any such 
claim. The legal history of the United States is 
opposed to it. The acts of the Government in the 
suppression of the rebellion are not apt antecedents 
upon which to found a precedent for the suppression of 
mere domestic violence, whether it be against the State 
or the United States. The ex-Attorney General says 
the President is authorized to employ the armed forces 
of the United States, under section 5298, ‘‘upon his 
own judgment alone,” against unlawful obstructions, 
combinations, or assemblages of persons. He reads the 
statute, therefore, without the words, ‘ ‘ whenever 
* * * it shall become impracticable, in the judg¬ 

ment of the President, to enforce, by the ordinary 
course of judicial proceedings, the laws of the 
United States.” This clause in the section has 
important antecedents and connections in the prior 
statutes. It shows, too, that the courts and civil 
authorities have not been entirely abandoned, and that 
the President should respect them to some extent in 
forming his judgment concerning the use of the mili¬ 
tary forces. If, however, he can do as he pleases, 


‘‘upon his own judgment alone,” then this is no 
longer a civil government, but we are practically 
living under military rule, and the government may, 
without very much ceremony, be turned into a mili¬ 
tary despotism. 

If the President can, arbitrarily, ‘ ‘ upon his own 
judgment alone,” use the military forces to suppress 
domestic violence in a State, against its protest, 
because interstate commerce laws or postal laws are 
being indirectly obstructed, upon the ground that the 
“ riotous disorders” are against the laws of the United 
States as well as against the laws of the State, where 
and when does the power of the President in this respect 
end ? If this proposition is carried to its legitimate, or 
rather its illegitimate result, there are numerous in¬ 
stances in wdiich the power can be exercised in the every¬ 
day occurrences of life. It may be said that it will not 
be resorted to in trivial governmental affairs. Mr. Ham¬ 
ilton thought the objection that the posse coniitatus 
would be supplanted by the military was absurd, but, 
if the contention of Mr. Cleveland’s last administration 
is correct, it has come to pass nevertheless. And as the 





51 

late Attorney General has based his argument upon a 
most doubtful precedent, the people should take care 
that no doubtful precedents in the use of the army in 
time of peace are established that affect their rights. 
The merest subterfuge is often claimed as the ground 
for a precedent. The people should be jealous of 
breaches of the fundamental laws of the nation. All 
such breaches, even “ though dictated by necessity, 
impair that sacred reverence which ought to be main¬ 
tained in the breast of rulers toward the Constitution 
of a country, and form a precedent for other breaches 
where the same idea of necessity does not exist at all, 
or is less urgent or palpable.” 

Hkbkr J. May. 

Washington, D. C., 

October 12^ iSgy. 



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